Information Tribunal Decision - Duchy of Cornwall

Case No. EA/2010/0182

IN THE FIRST-TIER TRIBUNAL Case No. EA/2010/0182

GENERAL REGULATORY CHAMBER

INFORMATION RIGHTS

ON APPEAL FROM:

The Information Commissioner’s

Decision Notice No: FS5029426

Dated: 5 October 2010

Appellant: Michael Bruton

Respondent: Information Commissioner

Second Respondent: The Duchy of Cornwall

Third Respondent: The Attorney General to HRH the Prince of Wales

Heard at: Field House London

Date of hearing: 20 and 21 September 2011

Date of decision: 3 November 2011

Before

John Angel

(Judge)

and

Rosalind Tatam

Pieter de Waal

Attendances:

For the Appellant: Karen Steyn and Mr Joseph Barrett (instructed by Harrison Grant)

For the Respondent: Robin Hopkins (instructed by the Information Commissioner)

For the Second Respondent: Jonathan Crow QC and Ms Amy Rogers (instructed by

Farrer & Co)

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Subject matter: Environmental Information - Reg 2(2) EIR (definition of “public

authority”)

Cases: Network Rail Ltd v IC EA/2006/0061 & 62

Port of London Authority v IC EA/2006/0083

Cross v IC EA/2010/0101

Aston Cantlow & Wilmcote with Billesley Parochial Church Council v

Wallbank [2004] 1 AC 546

R (on the application of Akester) v Department for the Environment, Food

and Rural Affairs [2010] EWHC 232 (Admin) [2010] Env. L.R. 33

Smartsource v IC & 19 Others [2011] I Info LR 1498 Case No. EA/2010/0182

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DECISION OF THE FIRST-TIER TRIBUNAL

The Tribunal allows the appeal and substitutes the following decision notice in place of

the decision notice dated 5 October 2010. Case No. EA/2010/0182

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SUBSTITUTED DECISION NOTICE

Dated 3 November 2011

Public authority: Duchy of Cornwall

Address of Public authority: 10 Buckingham Gate

London

SW1E 6LA

Name of Complainant: Michael Bruton

The Substituted Decision

For the reasons set out in the Tribunal’s determination, the Tribunal allows the appeal

and substitutes the following decision notice in place of the decision notice dated 5

October 2010.

The Tribunal finds that the Duchy of Cornwall is a public authority under the

Environmental Information Regulations 2004.

Action Required

The Duchy of Cornwall to disclose the requested information to Mr Bruton or if it

considers that the information or some of the information is subject to exceptions under

the EIR then to issue a refusal notice in respect of that information and serve it on all

the parties and Tribunal within 28 days of the date of this Decision Notice.

Dated this 3rd day of November 2011

John Angel

Principal Judge Case No. EA/2010/0182

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REASONS FOR DECISION

Introduction

1. Michael Bruton (“Mr Bruton”) requested environmental information from the Duchy

of Cornwall (“the Duchy”). This was refused on the basis that the Duchy did not

regard itself as a public authority under the Environmental Information Regulations

2004 (“EIR”) and therefore was not subject to the Regulations. The Information

Commissioner (“IC”) upheld that position and Mr Bruton challenged the IC’s

decision and appealed to the First-tier Tribunal (“FTT”).

2. The Duchy has a historical context which is complicated and possibly unique. It

has provided an income to the Prince of Wales (“PoW”) when Duke of Cornwall

(“the Duke”) for many centuries.

The request for information

3. Mr Bruton is a resident of “Shearwater”, Port Navas, a river user and a co-founder

and member of the “Port Navas Quay Preservation Committee”.

4. The background to the information request concerns the conservation of the Lower

Fal and Helford Special Area of Conservation (“SAC”), designated under the

Habitats Directive 92/43/EEC (“the Habitats Directive”). SACs come into being

after having being designated by Member States. They are also Sites of

Community Importance (SCI) adopted in accordance with Article 4(2) of the

Habitats Directive.

5. This SAC lies within the Duchy and has been designated for a number of reasons

but principally for the preservation of its large inlets and bays, Atlantic salt

meadows, mudflats and sandflats, and sandbanks (the latter supporting eelgrass

beds and maerl). We understand that the SAC is also the subject of several

Biodiversity Action Plans for its many species and habitats, including an action

plan for native oysters which aims to maintain and increase the abundance and

geographical distribution of native oysters in inshore waters. It is also one of the

few areas in the UK where the rare fan mussel survives.

6. Mr Bruton became concerned about the activities of the Fishery in the SAC in

2008. He wrote on 29 September 2008 to the Duchy asking for:

a. “Details of any permissions given to the tenant Mr B Wright and/or to

the Duchy Oyster Farm at Port Navas, Cornwall TR11 5RJ – relating to

the lease since Mr Wright took up the tenancy.

b. Details of any appropriate Environmental Assessments required in

respect of the activities of the Oyster Farm and whether those

Environmental Assessments have been carried out.

Request for Copy of Ministerial Orders Case No. EA/2010/0182

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I request also copies of the Ministerial Orders made in 1960 and

provided to the Duchy when they bought Port Navas Quay – related to

the banning of car parking and commercial/industrial activity on the

Quay.”

(“the Request”).

7. The reason behind Mr Bruton’s request was twofold. First, to ascertain whether

consents or permissions had been given to the Fishery in the SAC. Second, to

ascertain whether an environmental assessment had taken place before consents

or permissions were given so as to ensure that there would be no detrimental

environmental effects on the SAC. Mr Bruton feared that the Fishery was

cultivating and harvesting predominantly non-native Pacific oysters of both the

fertile diploid and triploid variety and he was concerned that it might have already

introduced stocks to the SAC. Mr Bruton also believes that the oyster fishery

involves dredging activities which may harm the site’s nature conservation

objectives.

8. The general provisions of the Conservation (Natural Habitats, &c.) Regulations

1994 (“the 1994 Habitats Regulations”) apply to any activity which is likely to

have a significant effect on the SAC and require the competent authority to abide

by the provisions of the Habitats Directive. Consent for an operation may be given

only after having ascertained that the plan or project will not adversely affect the

integrity of the site. A competent authority under the Habitats Regulations

exercises the public function of ensuring that no activity which might damage a

SAC is permitted.

9. Only the competent authority may give consent to the Fishery.

10. The Duchy responded to the Request on 7 October 2008 indicating that it did not

consider itself to be a public authority for the purposes of the EIR or FOIA.

The relevant statutory framework

11. The EIR permit public access to environmental information which is held by public

authorities. They implement Directive 2003/4/EC of 23 January 2003 on public

access to environmental information (“the Directive”), which in turn implements

the Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (“the Convention”) which

came into force in October 2001. ‘Public authority’ is defined at reg 2 EIR as

follows:

(2) Subject to paragraph (3), "public authority" means -

(a) government departments;

(b) any other public authority as defined in section 3(1) of the Act

[Freedom of Information Act 2000], disregarding for this purpose the

exceptions in paragraph 6 of Schedule 1 to the Act, but excluding -

(i) any body or office-holder listed in Schedule 1 to the Act only in

relation to information of a specified description; or

(ii) any person designated by Order under section 5 of the Act; Case No. EA/2010/0182

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administration; or

(d) any other body or other person, that is under the control of a person

falling within sub-paragraphs (a), (b) or (c) and -

(i) has public responsibilities relating to the environment;

(ii) exercises functions of a public nature relating to the

environment; or

(iii) provides public services relating to the environment.

12. A number of provisions of the Freedom of Information Act 2000 (“FOIA”) are

relevant to this definition. By section 84 of FOIA, ‘government department’ includes

any “body or authority exercising statutory functions on behalf of the Crown”.

13. Section 3(1) of FOIA refers to “publicly-owned companies”, defined at section 6 as

follows:

(1) A company is a “publicly-owned company” for the purposes of section

3(1)(b) if

(a) it is wholly owned by the Crown, or

(b) it is wholly owned by any public authority listed in Schedule 1 other

than—

(i) a government department, or

(ii) any authority which is listed only in relation to particular

information.

(2) For the purposes of this section—

(a) a company is wholly owned by the Crown if it has no members

except—

(i) Ministers of the Crown, government departments or companies

wholly owned by the Crown, or

(ii) persons acting on behalf of Ministers of the Crown, government

departments or companies wholly owned by the Crown, and

(b) a company is wholly owned by a public authority other than a

government department if it has no members except—

(i) that public authority or companies wholly owned by that public

authority, or

(ii) persons acting on behalf of that public authority or of

companies wholly owned by that public authority.

(3) In this section—

“company” includes any body corporate;

“Minister of the Crown” includes a Northern Ireland Minister.

14. The EIR implement the Directive. Paragraph 5 of the preamble to the Directive

provides that EC law must “be consistent” with the Convention. Article 2(2) of the

Directive defines ‘public authority’ as follows:

2. ‘Public authority’ shall mean: Case No. EA/2010/0182

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(a) government or other public administration, including public advisory

bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative

functions under national law, including specific duties, activities or

services in relation to the environment; and

functions, or providing public services, relating to the environment under

the control of a body or person falling within (a) or (b).

Member States may provide that this definition shall not include bodies or

institutions when acting in a judicial or legislative capacity. If their

constitutional provisions at the date of adoption of this Directive make no

provision for a review procedure within the meaning of Article 6, Member

States may exclude those bodies or institutions from that definition.

15. We note that reg 2(2)(c) EIR corresponds with Article 2(b) of the Directive.

Although there is no definition of ‘public administrative functions’ in either

instrument Article 2(b) does include “specific duties, activities or services in

relation to the environment” as such functions. As will be seen below this

corresponds with the Convention’s meaning.

16. The Convention provides:

Article 1

OBJECTIVE

In order to contribute to the protection of the right of every person of present

and future generations to live in an environment adequate to his or her health

and well-being, each Party shall guarantee the rights of access to

information, public participation in decision-making, and access to justice in

environmental matters in accordance with the provisions of this Convention.

Article 2

DEFINITIONS

For the purposes of this Convention,

...

2. “Public authority” means:

(a) Government at national, regional and other level;

(b) Natural or legal persons performing public administrative functions

under national law, including specific duties, activities or services in

relation to the environment;

functions, or providing public services, in relation to the environment,

under the control of a body or person falling within subparagraphs (a) or

(b) above.

(emphasis added)

17. The Aarhus Guide says in respect of the definition of “public authority”: Case No. EA/2010/0182

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The definition of public authority is important in defining the scope of the

Convention. While clearly not meant to apply to legislative or judicial

activities, it is nevertheless intended to apply to a whole range of executive or

governmental activities, including activities that are linked to legislative

processes. The definition is broken in to three parts to provide as broad a

coverage as possible. Recent developments in “privatized” solutions to the

provision of public services have added a layer of complexity to the definition.

The Convention tries to make it clear that such innovations cannot take

public services or activities out of the realm of public involvement, information

and participation.

EU Interpretative Principles

18. Reg 2(2) EIR is the domestic analogue of Article 2(2) of both the Aarhus

Convention and the Directive. The EIR is secondary legislation made pursuant to

s.2(2) of the European Communities Act 1972 to implement the Directive.

Accordingly:

(1) when interpreting the Directive and the EIR, the domestic court does not

deploy English law principles of statutory construction but rather applies the

principles of teleological construction established by the jurisprudence of the

ECJ;

(2) as the Directive gives effect to the Convention, in the case of any latent

ambiguity it should be construed in a manner consistent with the terms of that

international law instrument;

and

(3) if the terms of the EIR fail to give effect to the manner in which the Court of

Justice of the European Union (“CJEU”) would interpret the Directive, the EIR

must be read down accordingly.

19. It is well established that “Community law must be placed in its context and

interpreted in light of the provisions of Community law as a whole, regard being

had to the objectives thereof and to its state of evolution at the date on which the

provision in question is to be applied”.

20. Ms Steyn contends that the concept of public authority that pertains in relation to

the public’s right of access to environmental information as deployed in the

Directive must be construed having regard to the wider scheme of EU

environmental law, in particular the Habitats Directive.

If the EU legislative

scheme concerning environmental law imposes public law duties on a relevant

body or person then it would be entirely anomalous, she contends, and contrary to

principle, for that body to fall outwith the access to information regime that the

Directive establishes. Mr Crow accepts the interpretative principles and that the

EIR should be interpreted purposively and in the wider legal context in which it

HP Bulmer v Bollinger [1974] Ch 401 at p425-426 and Marks & Spencer v Customs and Excise Case C62/00

[2002] ECR I-06325 at §24.

R v Secretary of State for Trade and Industry ex p Greenpeace (No.2) [2000] 2 C.M.L.R. 94 at §38 per Maurice

Kay J (construing the Habitats Directive in a manner consistent with the relevant international agreements on marine

conservation).

3 Marleasing SA v La Comercial Internacional de Alimentacion SA C-106/89 [1990] ECR I-4135

CLIFIT Sr v Ministry of Health Case C-283/81 [1983] 1 CMLR 472 at §20.

The Habitats Directive is described by the European Commission as “the cornerstone of Europe’s nature

conservation policy” [283].Case No. EA/2010/0182

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appears. However he considers neither should be an excuse for ignoring the

words of the legislation and that we should not be beguiled into reading across

from one regime to another.

21. We have been mindful of these interpretative principles and Mr Crow’s words of

caution when considering this appeal.

The complaint to the Information Commissioner and his decision

22. Mr Bruton requested a review of the Duchy’s decision by letter to the IC on 14 July

2009. The IC was willing to consider the request despite the time elapsed and after

conducting an enquiry into the matter issued what he described as a Decision

Letter dated 5 October 2010 (“the DL”). Following correspondence with the Duchy

and Mr Bruton he found that the requested information was covered by the EIR but

that the Duchy was not a public authority for the purposes of the EIR under any of

the four limbs of regulation 2 (2)(a)-(d).

23. As to regulation 2(2)(a), the IC found that the Duchy is not a government

department:

a) It does not appear in the list of government departments on the Cabinet

Office’s website, nor is it listed as a public authority under section 3(1) and

Schedule 1 of FOIA. Its use of a ‘@duchyofcornwall.gov.org.uk’ email

address is not determinative.

b) The IC accepted that the Duchy is a “body” for the purposes of section 84

FOIA, but found that it does not exercise statutory functions, which he

interpreted as meaning the discharge of public law powers in relation to

members of the public.

c) Nor does the Duchy exercise any powers on behalf of the Crown, in the

common-law sense of that term, i.e. a metaphor for the executive branch of

central government.

24. As to regulation 2(2)(b), the IC found that the Duchy is not a publicly owned

company for the purposes of sections 3(1)(b) and 6(1) FOIA:

a) The Duchy is not an incorporated body, a company, or indeed a separate

legal person at all.

b) It is owned by an individual (the PoW) in his own right and not on behalf of

the Crown in its common-law sense.

25. As to regulation 2(2)(c), the IC found that the Duchy is not a body that carries out

functions which are both “public” and “administrative” in nature:

a) The Commissioner guided himself by case law and adopted a multi-factor

test;

The House of Lords’ decision in Parochial Church Council for the Parish of Aston Cantlow and Wilmcote with Billesley

v Wallbank and Another [2003] UKHL 37, [2004] 1 AC 546 (“Aston Cantlow”), and by the Information Tribunal’s Case No. EA/2010/0182

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b) By application of the factors set out in previous cases, the Duchy did not fall

within regulation 2(2)(c).

26. As to regulation 2(2)(d), the IC found that the Duchy is not “controlled” by anyone

within regulations 2(2)(a)-(c) and is therefore not within this subsection.

27. The IC also found, for reasons similar to those summarised above, that the Duchy

is not a public authority within the more restrictive definition under FOIA.

28. The IC concluded that he had no jurisdiction to consider complaints against the

Duchy.

The appeal to the Tribunal

29. Mr Bruton lodged a Notice of Appeal with the FTT dated 4 November 2010. The

Tribunal accepted the appeal because it regarded the DL as the IC making a

decision under s.50(2) FOIA applying the Upper Tribunal (“UT”) decision in

Smartsource v IC & 19 others [2011] 1 Info LR 1498 (“Smartsource”) [15-19]. In

his response to the appeal the IC accepted the Tribunal’s jurisdiction.

30. The Tribunal joined the Duchy to the appeal. Mr Crow for the Duchy accepted that

the FTT has jurisdiction in the case.

31. Directions were issued staying the proceedings until the decision of the FTT in

Cross v IC EA/2010/0101 (“Cross”) was promulgated. This case involved a

similar issue relating to the Duchy of Lancaster. Although this Tribunal is not

bound by the decisions of another FTT this appeal was stayed so as to allow the

parties to consider the implications of the decision in Cross. Following the

decision, the stay was lifted and the appeal proceeded.

The questions for the Tribunal

32. The Tribunal has to decide whether the Duchy is a public authority for the

purposes of the EIR and subject to its provisions. All parties agree that the only

provisions of the EIR that the Tribunal has to consider are regs 2(2)(c) and (d). In

order to do this the Tribunal principally needs to decide:

a) Whether the Duchy is a body or other person, and

b) If so, whether it carries out functions of public administration, or

c) Whether the Duchy is under the control of the Duke who carries out functions

of public administration and has public responsibilities relating to the

environment, exercises functions of a public nature relating to the

environment, or provides public services relating to the environment.

“Network Rail” and “Port of London” decisions (Network Rail Limited v IC (EA/2006/0061 and EA/2006/0062); Port of

London Authority v IC (EA/2006/0083)).Case No. EA/2010/0182

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Background to the Duchy

33. The Charter of Edward III dated 1337 (“1337 Charter”) provided that the eldest

son of the Monarch being heir apparent succeeds to the title Duke of Cornwall

immediately he is born by right of inheritance.

With the title comes rights and

responsibilities with respect to the Duchy. If there is a living male son of the

Monarch who is also heir apparent then the Duchy is managed by the Duke. When

there is no Duke then the Duchy is managed by the Crown, but it does not belong

to the Crown or to the Monarch.

34. The Duchy was established to provide an income for the eldest living son of the

Monarch, being heir to the throne. The Charter provides that the Duke is entitled to

the income, net of all expenses, but not to the capital, thereby preserving the

estate for his successors. When there is no Duke (even if there is a Prince of

Wales), the Duchy estate reverts to the Monarch under the 1337 Charter. The

annual Civil List will then be reduced by the amount of the income generated from

the Duchy (by s.2 of the Civil List Act 1952). Similarly, when the Duke is a minor,

eight-ninths of the net revenues from the Duchy estate are placed at the disposal

of the Monarch and are used to reduce her income from the Civil List (again, by

s.2).

35. Walter Ross CVO (“Mr Ross”) the Secretary and Keeper of the Records of the

Duchy, who was the only witness before the Tribunal, explained that the estate

currently comprises some 53,628 hectares of land and around 2,100 hectares of

woodlands, mostly in the south west of England, together with around 258 km (160

miles) of coastline, the Isles of Scilly, the navigable riverbed of the Tamar, most

Cornish rivers and some rivers in Devon. The properties comprised within the

estate include over 3,500 individual lettings, including 700 agricultural agreements,

700 residential agreements, and 1,000 commercial agreements, as well as

Highgrove House in Gloucestershire (which is the family home of the Duke and

Duchess of Cornwall). In addition, the estate includes a small urban residential

property portfolio, a commercial property portfolio and a financial investment

portfolio, including both quoted investments and authorised unit trusts. The assets

of the estate used to include a retail property portfolio, but this has been sold in

recent years and assets have instead been invested in a variety of financial and

other property investments.

36. Mr Ross explained that the principal activity of the Duchy is the sustainable and

commercial management of estate land and properties. The current core ‘mission

statement’, set out in the 2010/2011 Annual Report and Accounts is:

“To maintain and develop a landed estate which fully reflects His Royal

Highness’s views and wishes, which will continue to provide an

adequate income for His Royal Highness and which he will be able to

pass proudly on to his son, from the viewpoints of its environmental

integrity, its physical and social fabric and its ability to continue to

provide an ongoing level of income sufficient to meet the requirements

of the heir to the Throne.”

See Halsbury’s Laws of England vol. 12 (1) paras. 318 – 353.Case No. EA/2010/0182

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37. Mr Ross further explained that the Duchy is managed by the Duke. He is

supported by The Prince’s Council (“the Council”) which meets twice a year,

acting effectively as an advisory board. The Council has a number of minor

administrative functions under the various Duchy of Cornwall Management Acts.

More generally, the Council provides advice to the Duke with regard to the

management of the Duchy estate.

38. In addition to the Duke, the Council comprises a number of Officers appointed by

the Duke, and other persons who have the confidence of the Duke.

39. As to the Officers:

a) The offices of Secretary and Keeper of the Records are technically separate,

but they have by convention been held by the same person for some

considerable time. Mr Ross currently holds both offices, and is in practice the

full-time ‘chief executive officer’, with specific responsibilities under the Duchy

of Cornwall, Management Act 1863, in particular, under s. 31 of that Act, he

is obliged to enrol documents in the records of the Duchy.

b) The Lord Warden of the Stannaries in Cornwall and Devon is a ‘nonexecutive’ position: he acts as deputy chairman of the Council, and as

chairman when there is no Duke of full age. The current Lord Warden of the

Stannaries is Sir Nicholas Bacon, Bt., OBE, DL.

c) The Attorney General to the Prince of Wales is the Duke’s principal legal

officer. (When there is no Prince, he is the Attorney General to the Duchy of

Cornwall.) The current Attorney General is Jonathan Crow QC who acts for

the Duchy in this appeal.

d) The Receiver General has oversight of the estate’s financial affairs. The

current Receiver General is the Hon. James Leigh-Pemberton.

40. Only the Keeper of the Records is employed and paid a salary. Other Officers of

the estate (such as the Attorney-General to the Prince of Wales) may receive fees

for services they provide.

41. Mr Ross explained that the Secretary and Keeper of the Records, Receiver

General and Lord Warden of the Stannaries in Cornwall and Devon are the

“Proper Officers” for the purposes of the Duchy’s accounting procedures and the

application of the relevant aspects of company law to the Duchy’s Accounts.

Is the Duchy a body or other person?

42. In Cross it was not necessary for the Tribunal to decide whether the Duchy of

Lancaster was a body because it clearly stated so in its establishing Charter.

However the 1337 Charter does not establish the Duchy in that way.

E.g. the power to fix fees for inspection of enrolments, under s.36 of the Duchy of Cornwall Act 1844 and

the power to authorise payments from the capital account, under s.12 of the Duchy of Cornwall,

Management Act 1863.Case No. EA/2010/0182

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43. Mr Ross in evidence says it is not a body or other person. However Mr Ross also

explains that “at least in recent years” it is “the general practice for all contracts

other than leases” to have been entered into in the name of “the Duchy of

Cornwall” although he says “this is not strictly permissible, because the Duchy

estate is not itself a legal person; it is a shorthand that has developed over time.”

He also informed us that there had been transactions between the Duchy and

Duke, for example the Duke pays rent to the Duchy for his occupancy of

Highgrove House and the Duchy has purchased quantities of timber from the

Duke.

44. We note that contracts with employees, presumably including Mr Ross himself, are

entered into with the Duchy, not the Duke or PoW. The Staff Handbook headed

“Duchy of Cornwall” refers to “employment by the Duchy”. The Duchy appears to

pay PAYE. The Duchy takes out permanent health insurance on behalf of the

employees. The Duchy operates a non-contributory pension scheme providing

benefits based on final pensionable pay.

The Duchy reimburses travel and other

expenses. Employees give their consent to the Duchy processing their personal

data. The Duchy is notified as the Data Controller under the Data Protection Act

1998.

45. Mr Crow says that using “the Duchy” in this way distinguishes between the income

generating organisation centred at Buckingham Gate where the Duchy’s staff are

mainly located and the income spending staff of the PoW based at Clarence

House. He contends this does not mean the Duchy is a body or other legal person.

However, although we found Mr Ross’s evidence at times confusing and unclear,

we were given to understand that the Duchy contracts in its own name and has

sued and been sued in its name (although the convention is to join the Attorney

General as the relevant party). In fact in this case the Duchy was joined as the

Second Respondent and it was only just before the hearing that Mr Crow asked for

the Attorney General to be substituted as the party. It was eventually agreed that

the Attorney General would be joined as the Third Respondent.

46. Mr Ross explained that Duchy lands were currently going through a voluntary

registration process with the Land Registry. We were shown in evidence the land

registry entries of land in Windsor Hill Lane, Windsor Hill, Shepton Mallet which

showed that the Proprietorship Register recorded the land in the name of His

Royal Highness Charles Philip Arthur George Prince of Wales, Duke of Cornwall

and Rothesay, Earl of Chester and Carrick, Baron of Renfrew, Lord of the Isles

and Great Steward of Scotland in right of his Duchy of Cornwall. In the Charges

the Surveyor General of the said Duchy of Cornwall or his deputy” who are

presumably employees of the Duchy, not the Duke. Also we note that in Mr Ross’

evidence to the House of Commons Committee of Public Accounts

he referred to

Highgrove House being owned by the Duchy of Cornwall and that certain

properties which are owned by the Duchy are let to Duchy staff and the PoW. As

we understand it as Keeper of the Records Mr Ross will hold information, deeds

The Duchy of Cornwall Staff Pension Scheme 1978 is a funded defined benefit scheme.

Nineteenth Report of Session 2004 – 05. Case No. EA/2010/0182

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etc on unregistered land and their dealings “enrolled in the Office of the Duchy of

Cornwall”.

47. Whatever the constitutional or other implications of registering Duchy lands in the

name of the PoW/Duke, bearing in mind that he is only entitled to the income from

the estates and needs the consent of the government (through HM Treasury) for

the sale of land and other assets, we do not regard the fact of registration in his

name as determinative of whether the Duchy is a body or legal person. It is one

factor we need to take into account.

48. The Duchy holds bank accounts in its name. This is a consequence of ss.4 and 17

Duchy of Cornwall Management Act 1863 and s.6 of the Duchy of Cornwall

Management Act 1982. Mr Ross says this is a matter of convenience to enable the

deposit of capital sums which form an inalienable part of the possessions of each

successive Duke. In any event Mr Crow says the title of a particular bank account

cannot convey legal personality on land and assets. We are not sure the Bank of

England who holds the accounts would agree that the Duchy has no legal

personality in relation to its deposits or its obligations to the Bank. In any case in

evidence Mr Ross was unclear as to the way the revenue and capital accounts

held by the Duchy operated.

49. We note that the 1997 financial statements presented to Parliament were in the

name of the “Duchy of Cornwall” and that the notes on the Duchy stated:

The Duchy of Cornwall is a body created by charter in 1337….. The assets of

the Duchy comprise agriculture, residential and commercial properties and a

portfolio of quoted investments and authorised unit trusts.

The Duchy is subject to the Duchy of Cornwall Management Acts 1863 to

1982, which effectively govern the use of the Duchy’s assets. The property

and other assets of the Duchy, and the proceeds of any sales of assets,

belong to the Duchy. His Royal Highness The Prince of Wales in right of his

Duchy of Cornwall is only entitled to the net income of the Duchy.

We further note that the introduction to the 2005 Financial Statement is in similar

terms.

50. We see that under the 1863 Act the Duke “shall not be personally liable to any

Action, Suit or other Proceeding in consequence thereof, or touching any other

Matter or Thing done or purporting to be done under the Authority of this Act” [or

1982 Act] …” and the Keeper of the Records of the said Duchy shall be

indemnified out of the Revenues of the said Duchy against Costs, Expenses, and

losses of and attending or incurred by any Suit against him aforesaid”. There are

other references in these statutes such as in s.7 of 1982 Act “where a transaction

affects land belonging to the Duchy” which suggest it is more than just a possessor

of assets. Mr Ross himself as the Keeper of Records of the Duchy has specific

duties under the 1863 Act in relation to, as his name suggests, the keeping of

deeds and charging fees for their inspection. These provisions in our view tend

towards the Duchy being a body or other legal person.

S.30 Duchy of Cornwall Management Act 1863. Case No. EA/2010/0182

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51. Mr Ross as the Secretary and Keeper of the Records of the Duchy of Cornwall

describes himself as “in effect, the Chief Executive Officer”. From the evidence

before us he can only be the CEO of the Duchy.

52. The IC accepts that the Duchy is a body under reg 2(2)(c) but not a separate legal

person. Instead he says it is a portfolio of assets that are placed within a private

individual’s possession. The IC does not go on to consider what the position is

when there is no Duke.

53. Both the IC and Duchy rely on the statement in the current edition of Halsbury’s

Laws to the effect that the Duchy is not a separate legal entity.

Ms Steyn says

that such a statement was never made in previous editions of Halsbury’s Law, so

questions the correctness of the latest statement.

54. We note the Law Officer’s opinion dated 15 August 1913 given in relation to the

tax position of the Duchy and Duke. The opinion provided a basis on which it could

be claimed that the Duchy was entitled to “Crown Immunity” and as a

consequence has a privileged tax position which has direct consequences for the

tax treatment of the present Duke and Duchy. Clearly in this context the Duchy is

considered separate from the Duke.

55. Ms Steyn maintains that the Duchy is a distinct sui generis legal person and, in

addition to some of the matters dealt with in previous paragraphs, says:

a) The Duchy is an entity that was created by an Act of Parliament. In the

Prince’s Case of 1606

it was decided that the Monarch could not by

prerogative power create such a mode of descent and that it is authority for

the proposition that the 1337 Charter was, in fact, an Act of Parliament and

that the Duchy is a creation of Act of Parliament.

b) The Duchy exists independently of the persons who, from time to time, are

Dukes of Cornwall. There may not be a Duke, but there is always a Duchy.

Whilst there is always an heir to the throne, it has often been the case over

the centuries that the heir has not been the eldest surviving son of the

Monarch, and so there has been no Duke. The Duchy has continued to own

its property, be party to contracts and incur liability throughout those

periods.

c) The Duchy is managed and controlled by the Council (which consists of

statutory officers and other appointees) and the Treasury because of its

powers in relation to the capital of Duchy assets and role in relation to the

Duchy’s accounts.

Halsbury’s Laws of England, Volume 12(1), paragraph 320.

2 8 Rep 1

14 Most recently there was no Duke from 1936-1952 because Edward VIII’s heir was his brother, George, and then

following his abdication George VI’s heir, was his daughter Elizabeth. Prince Charles became Duke, in accordance

with the terms of the Act, upon his mother’s accession to the throne. But he did not become entitled to the full

income until he reached the age of 21 on 14 November 1969. So for the 33 years from 1936-1969 the entire income,

save for one-ninth from 1952 onwards, was used to reduce the burden that the Civil List imposes on the public

purse.

See s.7 Duchy of Cornwall Management Act 1982. Case No. EA/2010/0182

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d) The Duchy is managed and administered by officers and employees who are

appointed under statutory authority.

e) It is extensively referred to in legislation and a distinction is drawn between

the legal entity that is the Duchy and the property of the Duchy.

56. Mr Crow says it is not such a person or body for a number of reasons including the

following:

a) There are no words of incorporation in the 1337 Charter. The Duchy is a gift

of property by the then King. The Charter created something similar to a strict

settlement under the Land Settlement Acts.

b) Land is being registered in the name of the Duke and tenancies are granted

in his name;

c) Legal provision was necessary for the Duchy to open bank accounts because

it was not a legal entity;

d) Litigation in relation to the Duchy is undertaken in the title of the Attorney

General to the Price of Wales;

e) Where the Parliamentary draughtsman in legislation refer to the Duchy it is a

shorthand for the Duke as possessor of the Duchy;

f) The Duchy accounts are not a legal document and only a label is being used.

57. The UT in Smartsource found that:

The definition of ‘public authority’ for the purposes of the EIR 2004 may be

fixed as a matter of its wording, but the outcome of its application will

necessarily change according to the context and over time. To that extent the

notion of a ‘public authority’ is both place- and time-specific. [105]

With this finding in mind, whatever the basis of the Duchy under the 1337 Charter,

we find that the Duchy is now a body or other legal person. Taking into account all

the above evidence and other statutory provisions, the practices of the Duchy and

the way it has presented itself to the world including Parliament, the differentiation

of the Duchy and Duke in commercial and tax matters as well as under legislation

and the contractual behaviour of the Duchy, we are led to the conclusion that the

Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the

EIR.

See s.8 of the Duchy of Cornwall Management Act 1868 (receiver general); s.4 and 31-33 and 34 of the Duchy of

Cornwall Management Act 1863 (Keeper of the Records) and s.2 of the Duchy of Lancaster and Cornwall

(Accounts) Act 1838.

See eg s.10 of the Duchy of Cornwall Management Act 1982; s.227 of the Planning Act 2008 and s.67

of the Wildlife and Countryside Act 1981. Case No. EA/2010/0182

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Does the Duchy carry out functions of public administration?

58. The UT decision in Smartsource is very relevant to helping us decide whether

the Duchy carries out ‘functions of public administration’. In any case the FTT is

bound by the decisions of the UT. In Smartsource the UT had to consider whether

the water and water and sewerage companies in England and Wales were public

authorities under EIR. The UT, sitting following the discretionary transfer of the

appeal from the FTT:

a) Decided that a body will not be a public authority simply because it carries

out public functions; they must be “functions of public administration” [35];

b) Agreed with and approved of the multi-factor approach taken by the

Information Tribunal in Network Rail v Information Commissioner

EA/2006/0061 (“Network Rail”) and Port of London v Information

Commissioner EA/2006/0083 (“Port of London”) namely that whether a

body was a “public authority” within reg 2(2)(c) EIR depended on a range of

factors [64] and that is a matter of fact and law [65];

c) Decided the onus lies on the appellant to demonstrate that the body falls

within the statutory definition [65];

d) Paid due regard to Lord Neuberger of Abbotsbury’s observations in YL v

Birmingham City Council that the mere fact of the existence of an intensive

regulatory regime “cannot mean that the provision of a service, as opposed

to its regulation and supervision, is a function of a public nature” [64] rather

the very fact an intensive regulatory framework exists may itself demonstrate

that the body operates at arm’s length from government otherwise the

regulatory regime would not be needed [71];

e) Decided that where any administration undertaken by the body is ancillary to

its primary commercial purpose then it does not become a function of public

administration simply because there is an obvious and significant public

interest [76];

f) Decided it is not open to the FTT to find that a body is a public authority for

some purposes but not for others [104];

g) Decided that in relation to reg 2(2)(d) the focus of both the Aarhus

Convention and the Directive is on “capturing governmental and executive

functions in their various guises”, rather than on functions at “arm’s length

from the machinery of the state” [94].

59. We would observe that the finding that a body cannot be a hybrid public authority

under the EIR is surprising bearing in mind that hybrid authorities are part of the

FOIA regime – see s.7. Also we note that under the Directive and Convention a

Member State may decide that the implementing regulations do not apply to public

authorities when they are acting in a judicial or legislative capacity. It would appear

that such public authorities are still public authorities to the extent that they carry

Under rule 19 of the Tribunal Procedure(First-tier Tribunal)(General Regulatory Chamber) Rules 2009 as

amended. Case No. EA/2010/0182

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out other functions of public administration. However we are bound by the UT’s

decision.

60. In Cross the Tribunal considered whether the Duchy of Lancaster was a public

authority for the purposes of EIR. The two Duchies are similar bodies in that the

Duchy provides an income for the PoW when Duke whereas the Duchy of

Lancaster provides an income for the Monarch. The Tribunal in Cross considered

that the starting point in a determination as to whether a body undertakes functions

of public administration is the statement of Lord Nicholls in Aston Cantlow &

Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546

(“Aston Cantlow”) at 555 [12]

“12 What, then, is the touchstone to be used in deciding whether a function is

public for this purpose? Clearly there is no single test of universal application.

There cannot be, given the diverse nature of government functions and the

variety of means by which these functions are discharged today. Factors to

be taken into account include the extent to which in carrying out the relevant

function the body is publicly funded, or is exercising statutory powers, or is

taking the place of central government or local authorities, or is providing a

public service.”

61. The UT in Smartsource approved of the factors taken into account in Port of

London and Network Rail. We set these out:

a) Whether there are types of functions that are typically governmental in

nature?

b) Do the functions of the body in question form part of a statutory scheme of

regulation?

c) Are those functions such that if the body did not exist some Governmental

provision would need to be made for the exercise of those functions?

d) Whether the organisation has a statutory basis, or whether it exists purely as

a matter of contract?

e) Whether the organisation is accountable to members or shareholders, or

alternatively whether it has some formal accountability to government (e.g. a

requirement to make reports to Parliament)?

f) The extent to which in carrying out the relevant function the body is publicly

funded, or is exercising statutory powers, or is taking the place of central

government or local authorities, or is providing a public service.

g) The extent to which the body is performing a regulatory function and the

degree of government control.

62. In relation to paragraph 58.e. above the appellant in Smartsource had argued that

some of the water companies functions were of a regulatory, rule-making or law

enforcement nature, for example their power to impose hose-pipe bans in times of

Lord Nicholls of Birkenhead’s analysis in Aston Cantlow at [13] adopted by the Tribunal in Network Rail.

Network Rail at [38]. Case No. EA/2010/0182

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actual or anticipated water shortage and to decide whether to grant consent to

trade effluent being discharged into public sewers. The water companies

conceded that they were not ordinary companies but argued that the examples

given by the appellant, which were described as “special features”, were “ancillary

to the water companies’ primary commercial purposes and are there to enable

them to protect their assets. The core regulatory functions or “functions of public

administrative” were vested in the Secretary of State and OFWAT during the 1989

process of privatisation. The bottom line is that the water companies are

commercial enterprises in the business of supplying water and providing sewerage

services; any administration that they undertake is ancillary to the central activity. It

does not become a function of public administration simply because there is an

obvious and indeed a significant public interest in securing a clean water supply

and safe sewerage system.” [76] The UT agreed with the argument.

63. What does this mean? We consider it means that a body which carries out

functions of public administration will not be a public authority for the purpose of

the EIR if those functions are on the whole secondary functions which are related

to and flow from primary functions which are not functions of public administration.

But where the functions of public administration are separate self-standing

functions which do not flow from or depend on the main activity of the body, they

are not “ancillary” in Smartsource terms and the body may be a public authority

for the purpose of the EIR.

64. The Duchy’s primary function according to its 2010/11 Annual Report is to provide

an income for present and future Dukes. The Duchy’s principal activity to generate

this income is the commercial management of its lands and properties.

65. But in evidence we were informed of a number of other activities undertaken by

the Duchy. We start by considering that of a Statutory Harbour Authority.

Statutory Harbour Authority in respect of the Isles of Scilly

66. The Duchy of Cornwall St Mary’s Harbour web site states that

“ We are a Private Harbour run by the Duchy of Cornwall. We have around

2000 visiting Yachts a year and Harbour users also include fishing boats,

local boat owners, inter island passenger launches and the Ships used for

the Island’s Mainland connections. As a Competent Harbour Authority we

provide Pilotage for the islands currently having around 25 visiting cruise

ships per year, along with sail training vessels, large yachts and special

cargo deliveries. We are classed as a Local Lighthouse Authority under

Trinity House enabling us to establish maintain certain navigational aids

around the islands. St Mary’s harbour is owned and managed by the Duchy

of Cornwall as part of the archipelago of the Isles of Scilly.”

67. The web site refers to the harbour bye-laws and rates which by implication have

been established by the Duchy.

68. We have been shown the Isles of Scilly Pilotage Service Operating Procedures

which were prepared by MARICO Marine for the Duchy as the Isles of Scilly Case No. EA/2010/0182

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Competent Harbour Authority. In the introduction it says “The Duchy of Cornwall

was appointed as the Competent Harbour Authority for the Isles of Scilly in 1987”.

69. Mr Ross in evidence told us that the Duchy employs a number of people to

undertake the statutory harbour and lighthouse duties.

70. Ms Steyn set out for us in some detail the position of the Duchy in relation to the

harbour. Under the Pier and Harbour Order Confirmation (No.4) Act 1890 (“the

1890 Act”) and the St Mary’s (Isles of Scilly) Harbour Revision Order 2007 (the

“the 2007 Order”), which incorporates most of the provisions of the Harbours

Docks and Piers Causes Act 1847 (“the 1847 Act”), she says the Duchy is the

statutory harbour authority (“the Statutory HA”) for the Isles of Scilly citing the

Explanatory Note to the Order – although the application was in the name of the

Duke.

71. Mr Crow argues that it is the Duke of Cornwall not the Duchy who is a harbour and

lighthouse authority for St Mary’s as “possessor of the Duchy of Cornwall” under

these statutes and that any public references by the Duchy that it is the harbour

and lighthouse authority are not accurate and are no more than shorthand.

72. On the basis that the Duchy is the harbour and lighthouse authority Ms Steyn

contends that it undertakes functions of public administration. She says the Duchy

is a Statutory HA under s.67 of the Harbours Act 1964 (“the 1964 Act”), which

defines harbour authority for the purposes of that Act as:

“ any person in whom are vested under this Act, by another Act or by an order

or other instrument (except a provisional order) made under another Act or

by a provisional order powers or duties of improving, maintaining or

managing a harbour”. (emphasis added)

73. The power and duty of improving, maintaining and managing the harbour of the

Isles of Scilly is imposed ‘on the possessor of the Duchy of Cornwall’ by the 1890

Act, as amended and expanded by the 2007 Order. The explanatory note to the

statutory instrument states that the reference to the ‘possessor of the Duchy’ (from

time to time) is co-terminous with the Duchy itself. Ms Steyn maintains that there

can be no dispute that it is the resources (and crucially the assets, including the

capital) of the Duchy which are subject to the duties of public administration which

the 2007 Order imposes.

74. The Duchy, if the Statutory HA, is also the relevant Statutory HA for the purposes

of, inter alia, the Merchant Shipping Act 1995, Merchant Shipping and Fishing

Vessels (Port Waste Reception Facilities) Regulations 2003, the Dangerous

Vessels Act 1985, the Dangerous Substances in Harbour Areas Regulations 1987,

various regulations regarding the reception of wastes under the Merchant Shipping

and Maritime Security Act 1997 and (importantly) the Pilotage Act 1987.

75. As such, Ms Steyn argues, the Duchy is the statutory body responsible for the

management of the Isles of Scilly’s principal harbour. She quotes from Douglas &

Green on the Law of Harbours, Coasts and Pilotage

(“Douglas & Green”), the

GK Green, Richard Douglas, Peter Low and Monica Peto, 5

edition, 1997, LLP Professional Publishing. Case No. EA/2010/0182

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leading treatise on the law relating to harbours, which helpfully summarises the

functions which Statutory Harbours perform as:

“(a) the provision and maintenance of harbour facilities, i.e., quays,

wharves, etc;

(b) navigational safety functions, including lighting and buoying the harbour,

the removal of wrecks and other obstructions and maintenance

dredging;

particular, regulating the movement and berthing of ships in the harbour

by means of directions and bye-laws and licensing dredging and the

construction of works in the harbour by other persons;

(d) carrying out harbour operations including, in particular, cargo-handling

activities;

(e) the provision of pilotage services; and

(f) of increasing importance, the prevention of pollution and nature

conservation…”

76. Douglas & Green also state: “[t]he powers granted to a harbour authority by

Parliament are in virtually all cases conferred for the purpose of providing a public

service”.

77. Ms Steyn also points out that while the statutory provisions conferring the functions

of managing and maintaining harbours are commonly framed in permissive terms,

the relevant provisions are properly interpreted as imposing a duty on the Duchy to

establish and maintain the relevant public services and to continue to perform the

relevant public administrative functions.

78. The nature and extent of the Duchy’s statutory duty is illustrated by s.33 of the

1974 Act and, by analogy, Re Salisbury Railway. S. 33 provides: “Upon payment

of the rates payable by this and the special Act (i.e. the Act which incorporates

section 33), and subject to the other provisions thereof, the harbour, dock and pier

shall be open to all persons for the shipping and unshipping of goods and the

embarking and landing of passengers”. In Re Salisbury Railway the court

considered that the railway was subject to an implied obligation to continue to

operate, for the public benefit, the railway and Market House and not, without

statutory sanction, to abandon any of its functions:36-C-E and 362C. By analogy,

and having regard to the terms of the provision, s.33 of the 1847 Act must be

interpreted as imposing an implied obligation to continue to maintain the harbour

for the benefit of the public until such time as the Statutory HA is released from

their functions by an Act of Parliament.

79. Douglas & Green observe the public duty which is imposed on Statutory HAs by

s.33 and similar provisions means that Statutory HAs cannot lawfully close even a

significant part of their harbour without Parliamentary authority.

Ms Steyn says

Gardner v London, Chatham and Dover Railway Co (1867) LR 2 Ch App 201 and Re Salisbury Railway

and Market House Co [1967] 3 WLR 651 (see also the Department for Transport’s Port Marine Code

[529]).

Green & Douglas, p21, paragraph 3.11. Case No. EA/2010/0182

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that the Duchy’s relevant local legislation makes no provision for any derogation

from this obligation.

80. Ms Steyn then provides us with a number of examples of what she describes as

functions of public administration which the Duchy, as a Statutory HA, has a duty

to perform such as navigational safety with power to deepen, dredge, scour and

improve the bed and foreshore of the harbour,

to mark and light the harbour

area,

to remove wrecks from the harbour

and so on. These powers she

considers are directed at safeguarding the life and property of all members of the

public using the harbour.

81. The Statutory HA has power to regulate the activities of all users of its harbour

area. The Statutory HA appoints the harbour’s ‘harbour master’. S. 52 of the 1847

Act confers wide powers for the Duchy’s harbour master to issue binding directions

regulating the activity of all ships using the harbour. All vessels using the harbour

are compelled by law to comply with such directions, and are subject to criminal

penalty for non-compliance - s.53 of the 1847 Act.

82. Ms Steyn provided us with further examples of the powers or functions of a

Statutory HA from excluding ships to enacting bye laws for the management and

operation of the harbours area to various environmental obligations in relation to

for example oil and pollution.

S.193(2)(a) Part VIII Merchant Shipping Act 1995

S.201 ibid

S.252 ibid

As stated by Widgery CJ in Pearn v Sargent [1973] Lloyd’s Reports 141 1t 144: “The function of the harbour

master under section 52 is to regulate the traffic; after all it is a public harbour where the public have a right to be,

and it is not the harbour master’s function, as such, to keep them out. His function is to control and regulate them

rather like a traffic policeman regulating traffic”

The Duchy’s harbour master wields further powers to exclude ships from the harbour on the basis that they

constitute a danger to public safety: s.1, Dangerous Vessels Act 1985. Failure to comply with such a direction is a

criminal offence: s.5 Dangerous Vessels Act 1985. The Duchy also enjoys the power to regulate the movement of

vessels carrying dangerous substances under the Dangerous Substances in Harbour Areas Regulations 1987.

Regulation 35 of the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 requires the Duchy to notify

the Secretary of State if it has reason to believe that a ship entering the harbour does not comply with the

requirements of those regulations.

A Statutory HA has power to enact bye-laws for the management and operation of its harbour area: s.83 of the 1847

Act. Further vires to make binding bye-laws are conferred by regulation 43 of the Dangerous Substances in Harbour

Areas Regulations 1987. Under s.57 of the Criminal Justice Act 1988, breach of harbour bye-laws is punishable by a

fine of up to level 4 on the standard scale.

Parliament has specifically legislated to render Statutory HA’s subject to a global duty, in formulating or

considering any proposals relating to their functions under any enactment, to have regard to various environmental

matters including conservation, freedom of public access to places of natural beauty and the availability of facilities

for visiting buildings, etc. of archaeological, architectural or historic interest: s.48A of the 1964 Act.

Under the Dangerous Substances in Harbour Areas Regulations 1987, the Duchy is subject to a range of

environmental and public safety obligations, primarily by regulating access to its harbour area of ships carrying

dangerous cargoes and the obligation to prepare emergency plans and arrangements: regulations 6 and 7 (powers of

prohibition and exclusion) and 26 (emergency plans). Under Regulation 44, the Duchy is given the responsibility for

enforcing the operative provisions of the Regulations: e.g. Parts II and III and regulations 19, 20, 32(2) and 38.

As to the Duchy’s functions which are directed specifically to the prevention of pollution, Schedule 1, paragraph 1

of the Maritime Safety Act 2003 authorises the Duchy to detain any ship where the harbour master has reason to

believe that the master or owner has committed an offence by discharging oil (or a mixture containing oil) into the

harbour. S. 131 criminalises such discharges. Case No. EA/2010/0182

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83. An important function of a Statutory HA is its statutory duties and powers to protect

public safety and the environment in its capacity as a marine pilotage authority

under s.1 of the Pilotage Act 1987.

84. S. 2 of the 1987 Act obliges each marine pilotage authority to keep under

consideration whether any, and if so what, pilotage services need to be provided to

secure the safety of ships navigating in or in the approaches to their harbours and

whether, in the interests of safety, pilotage should be compulsory in any part of

that harbour or its approaches. If so, the marine pilotage authority must consider

for what ships and in which circumstances pilotage is necessary, and what

services should be provided. S. 2(2) expressly requires that the Statutory HA has

particular regard to the hazards involved in the carriage of dangerous goods or

hazardous substances when performing this function. Some pilotage functions

cannot be delegated to another competent harbour authority - s.11(2) of the 1987

Act.

S.135 of the 1995 Act requires notice to the Duchy before oil is transferred to or from any ship in the harbour area.

S. 136 also obliges the owner or master of any ship that discharges or leaks oil (or a mixture containing it) to notify

the Duchy.

S. 259(6) confers the power upon the Duchy to board any ship in the harbour in order to ascertain the circumstances

relating to any alleged discharge or leak. In this connection the Duchy may also conduct such investigations as it

sees fit and require the production and copying of relevant documents.

The Duchy’s functions in respect of the Isles of Scilly harbour extend to clearing any oil spills which occur within

the harbour area: Douglas & Green, p90, paragraph 9.22. Further, s.137 of the Merchant Shipping Act 1995

specifically contemplates that the Secretary of State may issue directions to Statutory HAs in order to deal with any

oil spill affecting the harbour area.

Ss 153 and 154 of the 1995 Act provide that the Duchy is entitled to recover any costs incurred in the process of

remedying any oil spill within the harbour area from the owner of the ship concerned, even in the absence of

negligence. In the event that the full cost cannot be recovered from the owner then the Duchy will usually be entitled

to claim under s.175 of the 1995 Act against a statutory fund.

Under s.19 of the Prevention of Oil Pollution Act 1971, where a site on land commits a criminal offence under s.2 of

that Act by discharging oil (or a mixture containing it) into a harbour area, the responsible Statutory HA is the only

authority empowered to bring criminal proceedings against the malefactor. S. 11 of that Act also imposes a

notification obligation upon the owner of the relevant site to inform the Statutory HA of any such leak.

The Statutory regime has important environmental functions concerning the reception and processing of ships’

waste under the Merchant Shipping and Fishing Vessels (Port Waste Reception Facilities) Regulations 2003 which

gives effect to the UK’s international obligations under MARPOL. These measures require all Statutory HAs to

ensure that adequate reception facilities are provided in order to comply with the UK’s international legal

obligations.

Under s.3 of the 1987 Act it is the Duchy which determines which pilots shall be authorised to operate within its

harbour area and the Duchy which prescribes which qualifications (age, fitness, experience and skill etc.) shall be

required in order to be eligible for authorisation. Under s.5 of the 1987 Act it is the Duchy which has the statutory

responsibility for determining whether any pilot’s authorisation should be suspended or revoked within its

jurisdiction on grounds of incompetence, misconduct, cessation of eligibility etc. S. 3(7) renders it a criminal

offence for any party not authorised by the Duchy to hold him or herself out as an authorised pilot within the

relevant area.

Sections 7, 8 and 15 of the 1987 Act establish the Duchy’s important functions concerning compulsory pilotage: see

e.g. The Isles of Scilly (Pilotage) Harbour Revision Order 1988 (SI 2156/1988). Under s.7 of the 1987 Act, if the

Duchy considers it necessary in the interests of safety then it has the duty to direct that pilotage shall be compulsory Case No. EA/2010/0182

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85. Mr Ross in evidence and Mr Crow in submissions advance a number of

contentions as to why the Duchy’s functions, if a Statutory HA, are not functions of

public administration for the purposes of the EIR. In brief, it is asserted that:

(1) the Duchy’s functions arise ‘purely as result of [its] possession of the land

and foreshore on the Isles of Scilly’. They were carried out by a private

individual until the turn of the twentieth century and, in common with other

ports, there is no reason why St Mary’s could not be operated by a private,

commercial operation. Commercial companies can own and manage ports as

Statutory HA in England and Wales;

(2) the Duchy’s functions as Statutory HA ‘are not public functions’;

(3) the Duchy’s public administrative functions as Statutory HA ‘are only a very

small part of the operations of the Duchy’. Levies are raised for the benefit of

the Duchy estate. Any administration undertaken by a private commercial

entity which is designated a Statutory HA is ancillary to this central

commercial activity;

(4) the detailed statutory scheme governing the activities of harbour authorities

in the Harbours Act 1964, Pilotage Act 1987 and otherwise simply serves to

demonstrate that harbour undertakers operate in an arm’s length relationship

vis a vis government: c.f. Smartsource [71], in relation to water companies;

and

(5) in any event, those public functions which arise in respect of ports and

harbours in England and Wales are vested in the Secretary of State, not in

the harbour authority.

86. Ms Steyn disagrees. She argues that:

a) It is erroneous to assert that the Duchy’s public administrative functions as

Statutory HA arise because of its land ownership in the Isles of Scilly. Its

functions arise because they have been conferred under statute. Another

public body, such as the Isles of Scilly Council, could have been appointed

as Statutory HA but the decision has been taken to vest the relevant statutory

powers and duties in the Duchy;

b) The nature of the public administrative functions that the Duchy carries out as

Statutory HA in respect of the Isles of Scilly is a matter of legal analysis.

Applying well-established principle it is clear that Statutory HAs duties and

powers, being conferred under statute and principally directed to ensuring

public and environmental safety, must be characterised as functions of public

administration;

c) It is correct to note that public limited companies can be designated as

Statutory HAs e.g. Associated British Ports. However, it is an elementary

for ships navigating in, or in any part, of its harbour or the approaches thereto. The power to issue such compulsory

pilotage directions is flexible, in that directions may specify the class of ship, area, circumstances etc. in which the

obligation to submit to the compulsory pilotage shall be imposed. S. 15 establishes that the failure to comply with

compulsory pilotage directions is a criminal offence.

Halsbury’s Laws Vol 36(1) (2007 Reissue), ‘Ports and Harbours’. Para 620.

See variously, for example, the Harbours Act 1964 (esp. ss.14-17, 31, 44 and Schedule 3), the Marine Strategy

Regulations 2010 (SI 2010/1627), the Aviation and Maritime Security Act 1990, s.19 and the Transport Act 1982,

s.66. Case No. EA/2010/0182

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error (and non-sequitur) to suggest that it in any way assists in the analysis

of the nature of the functions which the Duchy exercises as Statutory HA for

the purposes of the EIRs, the Directive and Aarhus. In short, if a public

limited company exercised the statutory powers and duties of the Duchy

under an analogous legislative scheme then it too would be engaged in

carrying out functions of public administration and would be subject to the

EU’s environmental information regime. It must be noted that a stated aim of

the Aarhus Convention, as recorded in the Implementation Guide, was that

bodies engaged in functions of public administration could not be inoculated

against public scrutiny and accountability by privatisation: Implementation

Guide, p33.

d) Neither the EIRs, the Directive nor the Aarhus Convention comprehend any

de minimis exemption. Further, the suggestion that the Duchy’s scale in

absolute terms can affect the analysis of its functions as Statutory HA in

respect of the Isle of Scilly is flawed in principle. Moreover, as the Duchy is

the only Statutory HA for the entire population and territory of the Isles of

Scilly any attempt to minimise the importance of its role is misconceived.

87. Having considered all the evidence and arguments including the Tribunal’s

decision in Port of London, which is almost certainly another Statutory HA, we

find that the Duchy is a Statutory HA and do not find it surprising that the Duchy

publicly says exactly that.

We consider that Ms Steyn’s arguments are to be

preferred and that, in any case, there appears to be a reluctant acceptance by Mr

Crow that this is the case. What he really argues is that a Statutory HA does not

carry out functions of public administration. If we are wrong we note that Mr Crow

considers that the Duke is the Statutory HA.

88. We now need to undertake a multi factor approach as approved in Smartsource

to determine whether the Duchy carries out functions of public administration as a

Statutory HA. Before doing this however we need to consider some contextual

European law.

The Duchy’s functions of public administration under the EU Environmental law

regime

89. A Statutory HA (and a lighthouse authority) is a ‘relevant authority’ within the

meaning of regulation 6 of the Conservation of Habitats and Species Regulations

2010 (“the 2010 Conservation Regulations”) and regulation 5 of the 1994

Habitats Regulations.

90. Ms Steyn submits that the Duchy is also a ‘competent authority’ for the purposes

of regulation 7 of the 2010 Conservation Regulations and regulation 6 of the 1994

Conservation Regulations. Regulation 7 of the 2010 Conservation Regulations

provides that a competent authority includes “any government department,

statutory undertaker, public body of any description or person holding a public

office”. The Duchy falls within this definition, Ms Steyn submits, as a statutory

undertaker, a public body and a relevant authority in relation to marine areas and

European marine sites.

Also see Duchy of Cornwall 2005 Report and Financial Statements page 4. Case No. EA/2010/0182

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91. Mr Crow asserts, without seeming to provide reference to supporting evidence or

explanation, that it is not a ‘competent authority’, but had difficulty in asserting that

it was not a ‘relevant authority’. Ms Steyn argues that being a ‘relevant authority’ is

more than sufficient to establish that the Duchy is a public authority for the

purposes of the EIR, the Directive and the Aarhus Convention.

92. Ms Steyn contends that it would be entirely contrary to the aims of the Aarhus

Convention, the Directive and the EIR if a body which is a ‘relevant authority’ for

the purposes of what the European Commission has stated is “the cornerstone of

Europe’s nature conservation policy” (alongside the Birds Directive) was not

subject to the European access to environmental information regime. As noted in

CILFIT(at §20)

above at paragraph 19: “Community law must be placed in its

context and interpreted in light of the provisions of Community law as a whole,

regard being had to the objectives thereof and to its state of evolution at the date

on which the provision in question is to be applied”.

93. Ms Steyn puts two propositions to us based on this guidance:

a) the duties imposed upon the Duchy as Statutory HA under the EU Habitats

Directive must themselves be regarded as public administrative functions in

order to ensure the coherent and harmonious application of EU law; and

b) the fact that these additional duties, being expressly directed to

environmental protection, are incumbent upon the Duchy in exercising its

domestic statutory obligations confirms that those responsibilities are

functions of public administration for the purposes of EU law.

94. Ms Steyn drew our attention to the case of R (on the application of Akester) v

Department for the Environment, Food and Rural Affairs [2010] EWHC 232

(Admin); [2010] Env. L.R. 33.

95. The claimant in R (Akester) sought judicial review of a decision by Wightlink Ltd

(“Wightlink”), a private company and Statutory HA for Lymington Pier, to introduce

more powerful ferries on a route which terminated at its harbour. Wightlink's

functions as statutory HA were expressly limited in geographical scope by its

empowering local legislation to Lymington Pier and a small adjacent area of water.

Beyond Wightlink’s harbour area, the ferries would pass through an EU SAC. The

Claimant sought to establish that Wightlink was a competent authority under the

Habitats Directive and so was required to conduct an ‘appropriate assessment’ of

the proposed new ferries’ potential impact on the EU SAC.

96. Owen J held that despite the fact that Wightlink was a private company and was

acting in a commercial capacity it was nevertheless a competent authority for the

purpose of the EU regime and consequently subject to the public law duties which

the directive imposed. The judge held that neither the Habitats Directive nor the

Habitats Regulations specifically preclude a non-governmental body from being a

competent authority. He stated (at §§85-86):

CILFIT Sr CILFIT (Srl) v Ministry of Health C-283/81 [1983] 1 CMLR 472 Case No. EA/2010/0182

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“The fact that [Wightlink] is a private company does not in my judgment

disqualify it from discharging its public duties as a statutory harbour authority.

The discharge of its public duties must override commercial considerations.”

and

“[Wightlink's] decision to introduce and operate the new ferries was a decision

made in discharge of its functions as a harbour authority, and had therefore

to be made in compliance with its obligations under the Habitats Directive

and Habitats Regulations.”

(emphasis added)

97. The judgment, Ms Steyn maintains, demonstrates that the Duchy is a competent

authority in carrying out its functions as a Statutory HA and that it is subject to the

duties imposed under the EU environmental law regime when engaged in activities

which are primarily of a private/commercial character. We agree.

Multi-factor approach

98. We have referred above to the factors approved by Smartsource and those also

applied in Cross. We also remind ourselves that functions of public administration

include “specific duties, activities or services in relation to the environment” –

paragraph 15 above. Taking each in turn:

a) Whether there are types of functions that are typically governmental in

nature? We find there are. The power to create by-laws, to licence operators

and to undertake and/or regulate pilotage are examples.

b) Do the functions of the body in question form part of a statutory scheme of

regulation? We find there are such functions. There is a statutory scheme to

regulate merchant shipping, pollution, dangerous substances, to board

vessels etc.

c) Are those functions such that if the body did not exist some Governmental

provision would need to be made for the exercise of those functions? We

consider some government intervention would be needed even if it was to

appoint a private body or person to undertake the functions. Such

appointments seem to be made by statutory order. St Mary’s seems to be

open to the public. Provision would need to be made for the safety of

individuals and private boats as well as oil pollution and other environmental

matters.

d) Whether the organisation has a statutory basis, or whether it exists purely as

a matter of contract? The Duchy is, at the very least, a creature of statute. As

a Statutory HA there are many other statutory provisions, outlined in previous

paragraphs, which lead us to find that it does have a statutory basis.

e) Whether the organisation is accountable to members or shareholders, or

alternatively whether it has some formal accountability to government (e.g. a Case No. EA/2010/0182

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requirement to make reports to Parliament)? We find that the Duchy is

accountable to the Treasury and Parliament for annual financial reports. Also

it requires the consent of the Treasury to certain transactions. Mr Ross in his

evidence to the House of Commons Committee of Public Accounts in relation

to “The accounts of the Duchies of Cornwall and Lancaster”

, which he

largely confirmed in evidence before us, said “The governance of the Duchy

of Cornwall is very much controlled by the Treasury and in the process of this

hearing we will seek to point out the very considerable control that we think

the Treasury has over the affairs of the Duchy of Cornwall.”

f) The extent to which in carrying out the relevant function the body is publicly

funded, or is exercising statutory powers, or is taking the place of central

government or local authorities, or is providing a public service. We consider

that a Statutory HA provides a number of public services in relation to the

environment for example dealing with oil spillages and other forms of

pollution.

g) The extent to which the body is performing a regulatory function and the

degree of government control. We consider that a number of the functions of

a Statutory HA are regulatory functions from issuing bye laws to responsibility

for navigation. These are largely controlled through legislation. There appear

to be no regulators like OFWAT in the water industry as described in

Smartsource.

99. We conclude from this analysis that the preponderance of factors point to the

Duchy carrying out functions of public administration. This conclusion does not

mean that we consider all Statutory HAs will necessarily be public authorities

under the EIR. It depends on the facts in each case.

100. If we are wrong then the Duke must be the Statutory HA. Somebody has to be

performing these functions under the law and there is no other body or person it

can be. In any case Mr Crow maintains that the Duke is the Statutory HA for St

Marys. At the very least the Duchy undertakes the Statutory HA functions of public

administration on behalf of the Duke as he clearly does not do this himself. Messrs

Ross and Crow both say that the Duke manages the Duchy and, in effect, controls

it with the support of the Advisory Council. They say the only aspect of the Duchy

which is not under his control is capital dispositions which require the approval of

the Treasury. We take that to mean that even if the Duchy is not a public authority

under reg 2(2)(c), it is under reg 2(2)(d).

101. However is this an ‘ancillary’ function in Smartsouce terms so as to take it outside

the EIR? We think not. The Duchy’s primary business is not that of a port authority.

It manages properties and investments to provide an income for the Duke. The

Statutory HA role is not one which directly flows from the primary business. It is

different, independent and unrelated, and contributes only a small amount of

income.

Nineteenth Report of Session 2004-05. Case No. EA/2010/0182

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Is the Duchy subject to the EIR?

102. So far we have found that:

i) The Duchy is a body or other person;

ii) The Duchy is a Statutory HA;

iii) Statutory HAs are ‘relevant authorities’ and likely ‘competent authorities’

under the UK regulations implementing the Habitat Directive;

iv) The Aarhus Convention requires the Directive to be read purposively

so as to cover information requests relating to the EU environmental

regime as a whole;

v) Statutory HAs carry out functions of public administration;

vi) Therefore the Duchy is a public authority under reg 2(2)(c);

vii) Even if the Duchy is not the Statutory HA, the Duke is;

viii) The present Duke manages and controls the Duchy;

ix) Then the Duchy is a public authority under reg 2(2)(d).

103. To determine whether the Duchy is a public authority under the EIR, is it sufficient

that the Duchy is a public authority in its capacity as a Statutory HA? Smartsource

does not seem to allow us to consider whether the Duchy may be a hybrid public

authority for limited purposes under the EIR. And since we have found that the

functions of public administration performed by the Duchy as Statutory HA are not

ancillary in the Smartsource sense, those functions are sufficient to make it a

public authority subject to the EIR.

104. Having determined that the Duchy is a public authority by virtue of its functions as

a Statutory HA we do not consider we are required to engage in further analysis

but we would observe that, in addition to those functions, there are additional

factors indicating that the Duchy is also a public authority for other (some nonancillary) purposes. For example, the Duchy provides an income for the PoW in

his constitutional capacity to undertake public services and enjoys a statutory right

to bona vacantia. We make the following brief comments on these two points.

Income to support the Heir to the Throne’s public services

105. The Duchy’s evidence is that the 1337 Charter provided a private inheritance for

the Duke of Cornwall and that it is an entirely private operation. Today it provides

an income for the Duke. From Mr Ross’ evidence it would appear that most of that

income is used to fund the public services the Duke carries out and his charitable

activities. This is largely confirmed by the fact he pays income tax on only a small

part of his income.

106. The Duke as PoW has an important constitutional role as Heir to the Throne.

Under what is sometimes called the “Apprenticeship Convention” he is required to

be educated in the business of government in order to prepare him for the time

when he becomes King. Also he often stands in or represents the Monarch or UK

government at public and international functions or events. Clearly in modern

times the government has a public responsibility to ensure he is funded to carry

out such roles. He does receive some small grants but the bulk of his income

comes from the Duchy. If the Duchy did not provide this income then the

government would need to make provision. Case No. EA/2010/0182

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107. This relationship is clearly understood by the way the Civil List operates. When

there is no Duke or the Duke is a minor and too young to undertake any public

duties then the amount paid to the Monarch is reduced as she/he has the benefit

of the Duchy’s income. Similarly the relationship is seen through the way the

Duchy and Duke are taxed. The income is only taxed in the hands of the Duke but

not for the income supporting public services and charitable work which is the bulk

of the income. These are forms of indirect public funding.

108. Parliament wishes to ensure that the Duchy is managed properly so as to provide

the necessary income for the Duke by not only requiring the approval of the

Treasury to capital dispositions but also having oversight to ensure the Duchy is

being managed well. Mr Ross in his evidence to the House of Commons

Committee on Public Accounts explains this oversight through monthly meetings

and the Treasury giving advice often in the form of Accounts Directions. The

Treasury then has to present these accounts to Parliament annually. These

activities are subject to Parliamentary scrutiny through select committees. The 19

report of session 2004-05 made a number of recommendations which seem to us

to be about protecting the Duchy’s income and the transparency of its accounts.

109. Therefore in a modern day context the Duchy is carrying out the public function or

service of providing an income for the undertaking of an extremely important

constitutional role for the UK. The Aarhus Guide set out above states “the

Convention tries to make it clear that such innovations cannot take public services

or activities out of the realm of public involvement, information and participation.”

Here it was referring to recent privatisation but in our view the innovation may

equally be a historical one which was appropriate at the time. It has remained as a

convenient way of funding a public role but subject to Parliamentary scrutiny. It

follows that if the Duchy is not properly funding the Duke the government could

step in to ensure it is carrying out this public function, as it has done over many

centuries in relation to the Duchy through various Acts of Parliament.

110. From this it is not difficult to understand Ms Steyn’s argument that the Duchy is

also a public authority in performing its primary function and that the provision of

an income for the Duke is a function of public administration.

Bona vacantia

111. In the UK the government through the Treasury administers the estates of persons

who die intestate without known kin and collect and administer the assets of

dissolved companies. In exercising this function the State performs a public law

duty, as Blackstone states to prevent ‘strife and contention’ and the danger to

good public order and administration that would arise from the existence of

‘unowned’ property.

Blackstone also states that this right of bona vacantia is part

of the modern constitutions of most governments in Europe.

112. There are two exceptions in the UK – the Duchies of Cornwall and Lancaster. The

Duke has the right to bona vacantia for the County of Cornwall (which is not the

same geographical area as that covered by the Duchy). We were not provided with

I BI. Comm. 299 (14

Edition, 1803). Case No. EA/2010/0182

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evidence of how this originally arose but it is clearly reflected in legislation over

many centuries.

113. Mr Crow argues this a private right and that he is supported by the Tribunal’s

decision in Cross. The income from bona vacantia in Cornwall forms part of the

Duchy’s income and is reflected as such in the accounts. In the Duchy’s 2010/11

Annual Report the Duke received bona vacantia of £75,000. Surplus receipts were

paid to The Duke of Cornwall’s Benevolent Fund.

114. Ms Steyn argues that this is a public administrative function, as bona vacantia is

for largely the rest of the UK and that it is administered by the Duchy even when

there is no Duke.

115. As we have explained, in view of our finding in respect of the Duchy’s functions as

Statutory HA we do not need to decide whether these additional functions are also

functions of public administration and where relevant are not ancillary in the

Smartsource sense. However it seems to us to be reasonably arguable that they

are.

116. At the end of the hearing we asked Mr Crow to provide us with the conferring

charter or statute on bona vacantia of Duke/Duchy as this was not provided in any

of the bundles. He provided a note which went further than our request and in any

case did not seem to provide what we asked for. The Appellant objected to the

Tribunal having regard to the note before he had an opportunity to respond. As we

are not relying on this function we have not needed to decide whether to take the

note and the response into account.

Conclusion and next steps

117. We find that the Duchy of Cornwall is a public authority under the EIR and that the

Duchy must deal with Mr Bruton’s request under these Regulations. We substitute

a decision notice to this effect and require the Duchy to disclose the information or

issue a refusal notice in respect of the whole or part of the requested information

within 28 days of the date of this decision. In this regard, we would remind the

parties that as we understood the Duchy’s evidence, no Environmental

Assessment of the Oyster Farm had been carried out.

118. Our decision is unanimous.

John Angel

Principal Judge Date: 3 November 2011

Information Tribunal Decision - Duchy of Cornwall

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